The J. R. Watkins Company v. Waldo

• Decision Date: 06 December 1924
• Docket Number: 25,470
• Citation: 230 P. 1051,117 Kan. 250
• Parties: THE J. R. WATKINS COMPANY, Appellant, v. M. D. WALDO et al., Appellees
• Court: Kansas Supreme Court

230 P. 1051

117 Kan. 250

THE J. R. WATKINS COMPANY, Appellant, v. M. D. WALDO et al., Appellees

No. 25,470

Supreme Court of Kansas

December 6, 1924

Decided July, 1924

Appeal from McPherson district court; WILLIAM G. FAIRCHILD, judge.

Judgment reversed.

SYLLABUS

SYLLABUS BY THE COURT.

1. CONTRACT--Relation of Seller and Buyer Created. A contract examined and held to create the relation of seller and buyer and not that of principal and agent.

2. SAME--Written Contract--Not Varied by Parol Testimony. The obvious meaning of a written contract cannot be varied by the parol testimony of one of the parties.

3. SAME--Finding of Trial Court Not Based Upon Substantial Evidence--Will Not Support a Judgment. A finding of a trial court, which is not based upon any substantial evidence, is insufficient to support a judgment.

James A. Cassler, of McPherson, M. B. Webber, J. M. George and M. J. Owen, all of Winona, Minn., for the appellant.

P. J. Galle, James L. Galle, and Frank O. Johnson, all of McPherson, for appellees.

OPINION

HARVEY, J.:

This is an action by a foreign corporation for a balance claimed to be due it from citizens of this state for the sale of merchandise under a contract. The defendants appeared specially, objected to the jurisdiction of the court, and moved to set aside the summons served upon them for the reason that plaintiff is a foreign corporation, doing business in this state within the meaning of R. S. 17-506, and had never made application for, nor received authority from, the charter board to do business in this state. The court sustained this motion, and the plaintiff has appealed.

The contract between the parties, upon which the action was based, and in accordance with which their business was conducted, is as follows:

"THIS AGREEMENT, Made at Winona, Minn., U.S. A., this 1st day of December, A. D. 1920, between The J. R. Watkins Company, a Minnesota corporation, hereinafter called the company, party of the first part, and Morgan D. Waldo, McPherson, Kan., party of the second part,

"Witnesseth, That for and in consideration of the promises and agreements hereinafter contained, to be kept and performed by the party of the second part, the company promises and agrees to sell and deliver to the party of the second part free on board cars at Winona, Minn., or at its option at any of its regular places of shipment, any and all goods and other articles manufactured or sold, or which may hereafter be manufactured or sold by it, unless prevented by fire, insurrection, invasion, strikes, or other cause, at the usual customary wholesale prices, as the party of the second part may reasonably require for sale from time to time, from the date hereof, until the first day of March, 1922, as hereinafter provided, in the following described territory, except the incorporated municipalities therein located, to wit:

In the state of Kansas, in McPherson county, except the north tier of townships, the townships of Battle Hill, Delmore and New Gottland, in the second tier from the north and the north half of the townships of McPherson, Empire and Canton, in the third tier from the north, and in consideration thereof the party of the second part promises and agrees as soon as practicable after said goods and other articles are received, to make a thorough and personal canvass of said territory at least four times a year, at his own cost and expense, and to provide a proper outfit therefore, and to sell said goods or so much thereof as possible, and at all times during said term said party of the second part agrees to keep a complete record of all goods disposed of by him, and on hand, to make to said company complete regular weekly written reports of the sale and collections, which reports, however, or any of them, may be waived by said company, and also to report the goods on hand and outstanding accounts when requested by said company so to do.

"And the party of the second part promises and agrees to pay to said company at Winona, Minn., the wholesale prices aforesaid for the goods and other articles sold to him from time to time, as herein provided, and the prepaid freight and express thereon, if any, during said term, at the time and in the manner and in accordance with the provisions of the weekly report blanks of said company to be furnished to the party of the second part, and at the termination of this agreement to pay the whole amount therefore then remaining unpaid; or in cash, with the understanding that said Company will allow a discount of three per cent from said wholesale prices on all goods paid for on or before the 15th of each month, provided, full payment for all goods furnished prior to the first of the month next preceding such payment, and the indebtedness now due, shall then have been made; but such payments, or any of them, may be waived or extended by the said company without notice to the sureties hereon, and without prejudice to the rights or interests of said company, and if the party of the second part shall not pay cash for said goods and other articles so sold and delivered to him, and the payment at the time and in the manner and in accordance with said weekly report blanks, as aforesaid, are insufficient to pay therefore, or if the party of the second part shall fail to pay on the indebtedness now due, from time to time during said term, amounts satisfactory to said company, said company may in its discretion thereafter either limit the sale herein agreed to be made, or discontinue the same until such indebtedness is paid or reduced as said company may require; and at the termination of this agreement the party of the second part agrees to return by prepaid freight to said company at Winona, Minn., or other point at which the same were delivered, in as good condition as when delivered to him, f. o. b. cars, all of the said goods undisposed of by him, and the company agrees to receive such goods if the same are in such condition when received at Winona, Minn., or other point at which they were delivered to the party of the second part, f. o. b. cars, and pay or credit the party of the second part therefore, at the same prices at which the same were sold and delivered, and if not in such condition when so received the company shall make a reasonable charge for putting them in such condition, if that can reasonably be done, and deduct such charge from the amount of the goods so returned, and pay or credit the party of the second part with the balance thereof, but no goods left by said party with his customers, on time or trial, not paid for by them, or by them partially used and then returned to him, shall be returned to said company, or be paid for by it, or credited to the account of said second party.

"And it is mutually agreed between the parties hereto that the party of the second part shall pay all transportation charges on goods he so purchases and all expenses and obligations incurred in connection with the canvass and sale of said goods, and shall have no power or authority to make any statement or representation or incur any debt, obligation or liability of any kind...